The South Carolina Repetitive Trauma Statute includes very specific requirements. One of them, found in section (D), states “a repetitive trauma injury is considered to arise out of employment only if it is established by medical evidence that there is a direct causal relationship between the condition under which the work is performed and the injury.” I have always argued that a claimant cannot prove causality in a repetitive trauma claim by proving aggravation of a pre-existing condition, and that “direct causal relationship” really means proximate cause. The legislature could have included “aggravation” in the repetitive trauma statute had it desired to do so, but it didn’t. But plaintiff’s lawyers keep pushing aggravation, and doctors sometimes fall prey, and we have to constantly remind claimant’s lawyers and doctors what some words really mean.
I recently deposed a doctor who agreed with me that he could not state to a reasonable degree of medical certainty that the claimant’s job was the direct cause of his injury. But he tried to justify his positive causation opinion by suggesting that “direct cause” and “direct causal relationship” were two different things. “Direct cause,” he said, would not include a “direct causal relationship,” but that a “direct causal relationship” could include “direct cause” as well as additional “factors,” such as pre-existing conditions which could be aggravated, making “direct causal relationship” more inclusive than “direct cause.” If you have a doctor that offers this type of verbiage, try the following:
First, you can point out the fact that “relationship” is a noun and “direct” and “causal” are adjectives which restrict the meaning of the word “relationship” to the limits of the words “direct” and “causal.” You could probably also get him to agree that the word “causal” is modified further by the word “direct,” and that you aren’t dealing with, say, a circuitous causal relationship or even a weak or flimsy causal relationship; but rather, a direct. causal. relationship.
Second, you can get the doctor to agree he or she cannot state to a reasonable degree of medical certainty that the claimant’s job duties were the direct cause of the injury. In all but the most extreme cases, the doctor will likely agree with this statement.
Third, get the doctor to agree that the causality defined in their medical report or in the claimant’s lawyer prepared statement that they signed does not say “direct cause” or anything even close to it. Statements of causality included in doctor’s reports or records are almost always written by plaintiffs’ lawyers in one manner or another. Either the plaintiff’s lawyer had a telephone conversation with the doctor or the lawyer told the claimant what to tell the doctor or more likely the claimant’s lawyer sent the doctor a form to read and sign. Causality statements you will find in those records or reports usually define causality in terms like “most probably caused,” or “caused or aggravated.” If asked, your doctor will likely agree that these statements are not the same as “direct cause.”
If you are uncomfortable with what a doctor has put in writing, send him a letter with questions or take his deposition. You never know what he really thinks those words mean until you ask him.